Indian Railway Rules For Employees On Determination Of Appointing Authority

Principles For Determination Of Appointing Authority:

(a) The provisions of Indian Railway Rules For Employees On Principles for Determination Of Appointing Authority contained in Rule-2(1)(a) of the Railway Servants (Discipline And Appeal) Rules, 1968 reads as:

D&A Rule 2(1): In these rules, unless the context otherwise requires:

(a) ‘Appointing Authority’ in relation to a Railway servant means;
(i) The authority empowered to make appointments to the Service of which the Railway servant is, for the time being, a member or to the grade of the Service in which the Railway servant is, for the time being, included,
OR
(ii) The authority empowered to make appointments to the post which the Railway servant, for the time being holds,
OR
(iii) The authority which appointed the Railway servant to such Service, grade or post, as the case may be,
OR
(iv) Where the Railway servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment under the Ministry of Railways, the authority which appointed him to that Service or to any grade in that Service or to that post;
Whichever authority is the highest authority.

(b)  Railway Board order No. E(D&A) 63RG6-23, dated 21.02.1964 on the issue of determination of Appointing Authority reads as under:

Sub: Discipline And Appeal Rules – ‘Appointing Authority’ of staff in relation to imposition of penalties of Dismissal/Removal/Compulsory retirement.

Please refer to Shri B.D.Gour, Director Establishment’s D.O. of even number dated 14.06.1963 to your C.O.Ps. on the above subject and latter’s reply thereto. The Board have carefully considered the matter in consultation with the Ministry of Law and decided that in cases where record or appointment letters to show the actual appointing authority are not available, the General Manager should be treated as the ‘Appointing Authority’ and it would not be safe to follow any other course.

(c)  Railway Board vide their letter No. E(D&A)76RG6-49, dated 23.08.1977 further clarified the principle of determination of Appointing Authority as under;

Sub: Discipline And Appeal Rules – ‘Appointing Authority’ of staff in relation to imposition of penalties of Dismissal / Removal / Compulsory Retirement – Clarification.

Reference Board’s letter No. E(D&A) 63RG6-23, dated 21.02.1964 wherein Board has decided that in cases where records or appointment letters to show the actual appointing authority are not available, the General Manager should be treated as the ‘Appointing Authority’ and it would not be safe to follow any other course.
Consequent upon a decision of the Calcutta High Court on 16.07.1976 in FMA No.1022 of 1975 dismissing the appeal of the Eastern Railway against the judgment dated 02.09.1974 of the single judge of Calcutta High Court quashing Eastern Railways order of removal from service served on Shri P.C.Choudhary and other Class-III staff, inter alia, on the ground that the expression ‘whichever authority is the highest authority’ appearing below Rule 2(1)(a) of Railway Servants (Discipline And Appeal) Rules, 1968 applies with all force to all the sub-clauses (i), (ii), (iii) & (iv) thereby providing that of the authorities making appointments of Railway Servants to the service or grade or post, the highest authority among them shall be the Appointing Authority, the Board have considered the matter. It is clarified that delegation may serve the purpose only so long as the employee is not in a position to prove that he was not actually appointed by any higher authority in spite of delegation. In other words, in spite of delegation, if an authority higher than the authority to which powers have subsequently delegated has actually made appointment, would be the function of that appointing authority to dismiss, remove or compulsory retire the employee.

(d) Principle Laid Down By Hon’ble Supreme Court on Determination of Appointing Authority:

In the interpretation given by full Bench of Hon’ble Central Administrative Tribunal, Hyderabad in the case of Sheikh Kadar Mastan Vs South Central Railway Administration etc. vide judgment dated 04.12.1987 about determination of Appointing Authority on the railways in terms of Rule 2(1)(a) of the Railway Servants (Discipline And Appeal) Rules, 1968 and Rule 215 of of the Indian Railway Establishment Code Vol-I (1985 Edition) as well as the relevant entries in Schedule-II to the Railway Servants (Discipline And Appeal) Rules, 1968 concluded that the Divisional Mechanical Engineer and the Divisional Railway Manager, although they had appointed Shri Kadar Mastan and Nookaraju, were not competent to impose the punishments of dismissal, removal or compulsory retirement on them as Divisional Mechanical Engineer and the Divisional Railway Manager were only the delegates of the General Manager in the matter of making appointments.
The aforesaid judgment of the Hon’ble Tribunal was challenged by the Railway Administration before apex court. While disposing of bunch of Civil Appeals by a common judgment dated 10.04.1990 in the case of Civil Appeal Nos.1210 to 1217 of 1980 between Scientific Adviser to the Ministry Of Defence And Ors Vs S.Deniel And Ors etc. comprising Civil Appeal No.1381-82 of 1986 between Union Of India (Ministry Of Railways) Vs Sheikh Kadar Mastan & Anr., the Hon’ble Supreme Court describing Railways case observed that:-
To turn, next, to the railway cases, we are concerned with appointees to Group-C and Group-D of the services, which correspond to class-III and class-IV of the Civil Services. In respect of these persons, the relevant provisions are as follows:
2(1)(a) Appointing Authority, in relation to railway servant, means:
(i) The authority empowered to make appointments to the service of which the railway servant is, for the time being, a member or to the grade of the Service in which the railway servant is, for the time being, included, or
(ii) The authority empowered to make appointments to the post which the Railway servant, for the time being holds, or
(iii) The authority which appointed the Railway servant to such Service, grade or post, as the case may be, or
(iv) Where the Railway servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment under the Ministry of Railways, the authority which appointed him to that service or to any grade in that Service or to that post whichever authority is highest authority”.
2(1)(c) Disciplinary Authority means:
(i) In relation to the imposition of a penalty on a Railway Servant, the authority competent, under these rules, to impose on him that penalty;
(ii) In relation to Rule-9 and clauses(a) and (b) of sub- rule(1) of Rule-11 in the case of any Gazetted Railway servant, an authority competent to impose any of the penal- ties specified in rule 6.
(iii) In relation to rule 9 in the case of any non-gazetted Railway servant, an authority competent to impose any of the major penalties specified in rule 6;
(iv) In relation to clauses(a) and(b) of sub-rule(1) of Rule-11, in the case of a non-gazetted Railway servant, an authority competent to impose any of the penalties specified in Rule-6″.
7. Disciplinary Authorities:
(1) The President may impose any of the penalties specified in Rule 6 on any Railway Servant.
(2) Without prejudice to the provisions of sub-rule(1), any of the penalties specified in Rule 6 may be imposed on a Railway servant by the authorities as specified in Schedules-I, II and III.
(3) The disciplinary authority in the cases of a Railway Servant officiating in a higher post, shall be determined with reference to the officiating post held by him at the time of taking action.
8. Authority To Institute Proceeding:
(1) The President, or any other authority-empowered by him, by general or special order, may;
(a) Institute disciplinary proceedings against any Railway servant;
(b) Direct a disciplinary authority to institute disciplinary proceedings against any Railway servant on whom that disciplinary proceedings against any Railway servant on whom that disciplinary authority is competent to impose, under these rules, any of the penalties specified in Rule-6.
(2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of Rule-6 may, subject to the provisions of clause (c) of sub-rule (1) of Rule 2, institute disciplinary proceedings against any Railway servant for imposition of any of the penalties specified in clauses (v) to (ix) of Rule-6, notwithstanding that such disciplinary authority is not competent under these rules, to impose any of the latter penalties.
Schedule-II referred to in Rule-7(2) lays down that an order of Compulsory Retirement, Removal or Dismissal from service may be ordered, in the case of a Group-C or Group-D Railway servant by the appointing authority or authority equivalent in rank or any higher authority and Note 2 to the Schedule mentions that such an authority may also impose any tower penalty.
Under Rule-215 of the Railway Establishment Code (Vol-I), which deals with the recruitment, training and promotion of Group-C and Group-D railway servants, the authority competent to make a first appointment is the General Manager or any lower authority to whom he may delegate the power. The General Manager of each Railway has delegated his powers under several heads. One set of the Schedule of Delegation of Powers by the General Manager of the Southern Railway in Establishment Matters has been set out in some detail in the order of the Central Administrative Tribunal (CAT) in the case of Gafoor Mia and Ors. v. Director, DMRL, [1988] 2 CAT 277, (which is one of the orders in appeal before us). It is neither useful nor necessary to repeat them here in extenso. Here also, the argument is that, notwithstanding the delegation of powers of appointment of Group-C and Group-D employees to various other zonal officers, the General Manager has not divested himself of the power to make such appointments and continues to be the ‘Appointing Authority’. Being the highest among the various appointing authorities, he alone stands vested with the power to institute disciplinary proceedings and impose penalties. It is, therefore, submitted that the disciplinary proceedings, in the cases under this batch, initiated by the Divisional Superintendent and like officers were without jurisdiction and were rightly quashed by the CAT in Gaffoor Mia’s case, already referred to, and the decisions in the other matters before us following the said decision.
This, in crux, is the argument for the respondents. Before dealing with this argument, it will perhaps be helpful to steer clear of certain minor arguments addressed by either side:
(a) Sri Kanta Rao submitted that the same view as in Gafoor Mia, had been taken by the C.A.T. in Supriya Roy’s, case and that this Court has already, on 21.9.1988, dismissed S.L.P. Nos. 9956-57 of 1988 filed against the said order. This appears to be correct but the dismissal in limine of that S.L.P. cannot preclude us from considering the issue in these appeals on merits. It is seen that, in C.A. 3963/88, an application has been filed for revocation, on this ground, of the leave granted by this Court. We dismiss this application.
(b) Much store is set, on behalf of the respondents, by the decision of this Court in Dharam Dev’s case ‘(supra). It is no doubt true that the decision refers to the provisions of Rule 2(a) and applies the same to the case before it. But the context in which the case arose was a very simple and straight forward one. In that case, the employee in question had in fact been appointed by the Comptroller and Auditor General of India (CAG) and he was the highest authority in regard to the service in question. All that the decision pointed out was that, in view of this and of Article 311, no authority lower in rank to the CAG was competent to take action against the appellant before the Court. The Court had no occasion to consider the type of controversy that has arisen here and did not consider either the interaction of sub-clauses (i) and (iii) of clause (a) of rule 2 or the situation as to whether there could be more than one author- ity empowered to appoint persons to a post, grade or service within the meaning of sub-clause (i) or (ii) of clause (a) itself. This decision is therefore not helpful–and certain- ly not conclusive–to solve the issue arising before us. The same is the position in regard to the decision of this Court in Om Prakash v. Union (A.I.R. 1975 S.C. 1265) which seems to have been relied on, for the Union, before the CAT. In that case, the appellant was a temporary Government servant not holding a specified post. All that this Court pointed out was that, if the definition in Rule-2(a) was not applicable to such a person, the word ‘Appointing Authority’, understood in its plain and natural meaning would mean the authority which appointed him – viz. the Director General of the Geological Survey of India. If, on the other hand, the terms of rule 2(a) were applicable – the person empowered to appoint the appellant being one Sri Moghe and the person who appointed him being the Director General – the latter, who was the higher authority, would be the ‘Appointing Authority’. This, again, was an instance of a simple and direct application of the rule, involving no complications as here and cannot be treated as deciding the issue before us.
(c) On behalf of the appellant, the Union of India, reliance is placed on S-16 of the General Clauses Act, 1897. It is argued that, irrespective of the provisions in the rules, a person who makes an appointment has always an implied power of suspending or dismissing him – vide: Heckett Engineering Co. v. Workmen (1978-1 S.C.R. 693). There are three difficulties in accepting this argument. In the first place, even if the argument is valid, it confers on the factual appointing authority, in terms, only a power to suspend or dismiss and not a power to conduct disciplinary proceedings or impose the various other kinds of penalties envisaged in the rules. To say that the latter power also comes within S-16, one would need to make a further assumption that the power to suspend or dismiss is a more comprehensive power which would include the power to impose smaller penalties too and this assumption is said to run counter to the rules which deal with the two powers separately. Secondly, S-16 applies only “unless a different intention appears”. If the construction placed on the Civil Service Rules and the Railway rules on behalf of the respondents is correct, then the rules express a different intention and it would therefore not be possible to rest on the general principle enunciated by S-16. The contention has, therefore, to be examined independently and S-16 cannot be an answer to it. Thirdly, S-16 applies only where a general power of appointment is conferred under an Act or Regulation. Here the Act or Regulation (i.e. the Rules) envisages the power of appointment conferred by them on certain authorities being delegated. The power conferred on the delegatees is circumscribed by the instrument of such delegation and cannot be extended beyond its ambit, as observed by the C.A.T. in Gafoor Mia’s case (supra). S-16, therefore, does not come to the rescue of the appellants.
(d) An argument was raised at the earlier stages, that the words “whichever is the highest authority” governs only sub-clause (iv) of rule 2(a) of the Civil Service Rules and not the other sub-clauses. This contention cannot bear a moment’s scrutiny both because the above words occur in the Rules separately from the four sub-clause but also because the terms thereof clearly envisage a determination of one who, among several authorities, is the highest. It, therefore, clearly means that the ‘Authorities’ falling under the definitions in sub-clauses (i) to (iv) have to be ascertained and the highest among them taken as the disciplinary authority for purposes of Rule 12(2)(b).
The above discussion narrows down the controversy before us to a very short issue: Can it be said, where the appointing authority under Rule-9(1) has delegated his powers of appointment under the proviso, that both the authorities should be treated as the “Authority Empowered To Appoint” persons to the post, grade or service or does this expression get restricted only to the latter, i.e. the delegatee authority? If both fail under the above description within the meaning of sub-clause (i), the respondent’s plea that the definition in rule 2(a) will mark out only the Scientific Adviser / General Manager would be correct. On the other hand, if the second of the above interpretation is correct, the appellant’s stand will have to be upheld.
Learned counsel for the respondents vehemently contend that the authority specified under the schedule read with Rule-9(1) does not lose his authority to appoint merely by the act of delegating his powers to a subordinate authority. Such delegation no doubt empowers the subordinate authority to appoint but does not take away the power of appointment conferred on the authority specified in the schedule read with Rule-9(1).
Before dealing with the above contention, we may make reference to certain decisions cited by counsel on the consequences of such delegation. In Roop Chand v. State, (1963-Suppl. 1 SCR 539) the petitioner had filed an appeal from the order of the Settlement Officer to the State Government under S-21(4) of the relevant Act. But the State Government, having delegated – under S-41(1) of the Act – the right to hear and dispose of the appeals made to it to the Assistant Director (Consolidation), the petitioner’s appeal was disposed of by the said Officer who allowed the same. The Respondent thereupon sought to invoke a power conferred on the State Government under S-42 of the Act to revise the orders passed by the authorities under the Act. On a writ petition filed before it the Supreme Court quashed the revisional order passed by the State Government on the simple logic that the order passed under Section 41(1) read with Section 21(4) was an order of the State Government (though, in fact, passed by a delegate) and could not be “revised” by the State Government itself under S-42. The Andhra Pradesh High Court speaking through P.A.Choudary, J. in Daniel’s case (since reported in 1988-2 S.L.R. 477) thought that the principle of the case was of no avail to the Union of India which appears to have contended, on the strength thereof, that “though the disciplinary action was initiated by the Director, it must be treated as having been taken by the Scientific Adviser himself because the action of the Director, being that of a delegate, must be regarded in law as that of the principal himself”. The learned Judge repelled the argument, observing:
‘The ratio of the aforesaid case is that the action of the delegate can be treated as that of the principal himself. Applying the ratio of the above case to the facts of our case, it can be said at the most that the orders of appointments made by the Director, by reason of the statutory delegation made by the Scientific Adviser under Rule-9(1), are those of the Scientific Adviser himself, on the basic that the exercise, of the power delegated to an authority may be treated as an exercise of the power by the principal himself.
Accepting the principle, we cannot agree with the contention of the learned Counsel that the Director’s exercise of the disciplinary power against the petitioners should be treated as an exercise of disciplinary authority by the Scientific Adviser himself. The reason is too simple. Firstly, the statute deals, throughout its provisions, with the disciplinary power as a different and separate power from the power to appoint. Secondly, the disciplinary power is never delegated by the Scientific Adviser to the Director either under Rule-9(1) or any other rule of the CCA Rules. It follows, therefore, that the theory of imputation to the principal the acts of the delegate can have no application to such a situation as the one before us. We, therefore, find that the Roop Chand’s case is of no avail to the respondents.’
Though Sri Choudhary, who appeared before us for the respondents, seemed to have second thoughts about this, we are of opinion that the observations extracted above set out the correct position and that the Roop Chand decision is of no help. An attempt has been made before us to invoke the Roop Chand principle in a different way to support the case of the employees and argue that their appointments made by the Director should be treated as appointments made by the Scientific Adviser himself and that, therefore, no disciplinary action can be initiated against them by any one other than the Scientific Adviser himself. We do not think that this argument can be accepted. As observed in Kishore Kumar’s case (1980-1 S.C.R. 50) a delegation of power does not enhance or improve the hierarchical status of the delegate. The rule in Roop Chand as to the nature and character of the power exercised by a delegate was enunciated in a particular context. It cannot be treated as a general principle applicable to all situations. In particular, in the context of rules 2(a) and 12(2) with which we are concerned and which outline a contrast between the person who is empowered to appoint and the person who actually appoints, it is impossible to treat the Scientific Adviser / General Manager as the person who appointed the respondents.
Reference has not been made to Daluram Pannalal Modi v. Commissioner, (1963-2 SCR 286). This was a case as to the interpretation of the scope of a delegate’s power. S-19 of the Madhya Pradesh Sales Tax Act, 1958, empowers the Commissioner, if he is satisfied that any sale or purchase of goods, has escaped assessment, to make a reassessment. S-30 of the Act, however, enabled the Commissioner to ‘delegate any of his powers and duties under the Act’ and the Commissioner, exercising this power, delegated to the Assistant Commissioner his powers and duties to make an assessment or reassessment and to exercise all other powers under Sections 18, 19 and 20. An assessee challenged a reassessment notice issued by an Assistant Commissioner contending that what had been delegated was only the power of reassessment but not the duty of being satisfied that there was an escapement which, according to the assessee, still remained with the Commissioner. This argument was repelled and it was held that the requirement of being satisfied was an adjunct of the power to initiate reassessment proceedings. That principle cannot apply here as it is doubtful how far, in the context of the service rules which make a clear distinction between the power to appoint and the power to take disciplinary proceedings, the latter can be said to be adjunct or ancillary to the former.
This leads us to the question whether the appointing authority specified in the schedule can exercise his power of appointment to a post, cadre or service even after he has delegated that power to a subordinate authority under the proviso. An answer to this question in the affirmative is contended for on the strength of certain authorities which may now be considered. In Godawari S.Parulekar v. State Of Maharashtra, (1966-3 SCR 314) the appellant had been detained by an order passed by the State Government under Rule-30 of the Defence of India Rules. It was contended on behalf of the appellant, inter alia, that the State Government had earlier issued a notification delegating its powers under Rule-30 to the District Magistrate and was so not competent to make the order of detention in question. Reliance was placed for this argument on the observations of the Judicial Committee in King Emperor v. Shibnath Banerjee, (72 I.A. 241). These observations were distinguished and the above contention was repelled. It was held that by issuing the notification in question, the State Government had not denuded itself of the power to act under R-30 (vide Willis J. in Huth v. Clarke, (1890-25 QBD 391). Learned counsel also referred to the decision of the Karnataka High Court in Ramchandra Rao v. State, (1984-3 SLR 768). This case does hold that a power which is delegated can be exercised both by the delegator and the delegatee, though the Supreme Court decisions cited therein as deciding this issue do not seem to help. Halsbury (4th Edn., para 32), citing Huth v. Clarke, (supra), summarises the English Law on the subject thus:
‘In general, a delegation of power does not imply parting with authority. The delegating body will retain not only the power to revoke the grant but also power to act concurrently on matters within the area of delegated authority except in so far as it may already have become bound by an act of its delegate’.
However, the following passage from Wade on Administrative Law (Sixth Edition) at P-365 would seem to indicate that the position is not quite clear and may need detailed consideration in an appropriate case:
‘A statutory power to delegate will normally include a power to revoke the delegation when desired. While the delegation subsists it may be arguable whether the delegating authority is denuded of its power or is able to exercise it concurrently with the delegate. This question arose where under statutory authority the Executive Committee of a County Council delegated to a sub-committee its powers to make regulations for the control of rabies; but before the sub-committee had done anything the Executive Committee, without revoking the delegation, itself issued regulations for the muzzling of dogs. These regulations were upheld, but on inconsistent grounds, one judge holding that the Executive Committee had resumed its power and the other that it had never parted with them, and that ‘the word “delegate” means little more than an agent. In a later case the latter view prevailed, on the ground that ‘one cannot divest oneself of one’s statutory duties’. But the contrary was held by the Court of Appeal where a minister had formally delegated to local authorities his power to requisition houses. By doing this he had for the time being divested himself of his powers, so that an invalid requisition by the local authority could not be cured by their acting in his name; and the court rejected the contention that delegation was a form of agency. The Local Government Act 1972 expressly preserves the powers of a Local Authority concurrently with those delegated to its commits, etc.’
We do not think it is necessary to go into this question. In view of the decision in Godawari (supra), we shall accept the general proposition that the delegation of the power of appointment under the proviso to Rule-9(1) does not necessarily deprive the disciplinary authority specified in the main part of the rule from exercising the delegated power of appointment in any case or class of cases.
Still the basic question that remains is, whether, in the context of Rule-2(a) read with Rule-9(1), the reference to the authority empowered to make the appointment is to the authority mentioned in the proviso to Rule-9 or to both the authorities falling under the main part of Rule-9(1) as well as the proviso. The sheet anchor of the respondent’s case is that the expression ‘Appointing Authority’ is used in very few of the rules. One of them is Rule-12 and there can, therefore, be no valid reason to refuse to apply the definition clause in the context of those rules. It is urged that, by holding the person specified in the schedule also to be the ‘Appointing Authority’ as defined in Rule-2(a), none of the other rules relating to appeal, revision etc. become redundant as urged on behalf of the appellants. We agree with the respondents that the expression ‘Appointing Authority’ in Rule-12 should have the meaning attributed to it in Rule-2(a).
But what is the real and true interpretation of Rule 2(a)? What does that sub-rule talk of when it refers to a ‘person empowered to make the appointment’ in question? These words clearly constitute a reference to Rule-9. Does Rule-2(a) refer then to the authority empowered by the schedule to make the appointments or the authority to whom he has delegated that power or both? We think, on a proper and harmonious reading of Rule-2(a) and Rule-9, that sub-rule (a) of Rule-2 only envisages the authority to whom the power of appointment has been delegated under Rule-9 and not both the delegator and the delegate. We have come to this conclusion for a number of reasons. In the first place, it is clear on the plain language of Rule-2(a), that it directs the ascertainment of the authorities specified, in such of clauses (i) to (iv) of the rule as may be applicable to a particular case and designates the highest of them as the ‘Appointing Authority’. It envisages only one authority as falling under each of these clauses and not more. The respondent’s contention which involves interpretation of clause (i) or (ii) as contemplating more than one authority runs counter to the tenor of the rule. Secondly, the strictly literal meaning of Rule-2(a) insisted upon by the respondents would render the rules unworkable. For instance, under clause (i), one of the authorities to be considered is the ‘authority empowered to make appointments to the service of which the government servant is for the time being a member’. The respondents belong to one of the Central Civil Services. Though they belong to class-III or class-IV, there are class-I and class-II officers as well therein. Rule-8 declares that only the President can make appointments to Class-I in the service. If each of the clauses is read as envisaging a plurality of authorities as contended for and if clause (i) is literally interpreted, it will also include the President who is one of the authorities empowered to make appointments to the service of which the concerned employees is a member. This will render the entire gamut of the rules unworkable. On this interpretation, the President will be the only appointing authority under Rule-2(a) in all cases, being the highest of the authorities envisaged therein. This cannot clearly be correct. Rule-2(a) does not contemplate any authority other than the one empowered to appoint a person belonging to the post or grade which the concerned government employee holds. In that sense the two parts of clause (i) and clause (ii) are not to be read distributively to ascertain the authority empowered to make appointments (a) to the service (b) to the grade and (c) to the post and consider the highest of them. One has to restrict oneself to the post or grade of the government servant concerned and invoke clause (i) or (ii) as the case may be. Thirdly, the whole purpose and intent of Rule-2(a) is to provide that Appointing Authority means either the ‘de facto’ or the ‘de jure’ appointing authority. It will be appreciated that, generally speaking, only the de jure authority can make the appointment but, occasionally, a superior authority or even a subordinate authority (with his consent) could have made the appointment. Again it is possible that the authority empowered to make the appointment at the time when relevant proceedings in contemplation may be higher or lower in rank to the authority which was empowered to make the appointment or which made the appointment at a different point of time. The whole intent or purpose of the definition to safeguard against an infringement of Art.311(1) and ensure that a person can be dealt with only by either a person competent to appoint persons of his class or the person who appointed him, whoever happens to be higher in rank. That rule is not infringed by the interpretation placed by the appellants. The provisions of Schedule-II in the case of the Railways which specify the appointing authority or an authority of equivalent rank or any higher authority as the disciplinary authority are also consistent with this interpretation. Fourthly, the interpretation sought to be placed by the respondents on Rule-2(a) is artificial and strained. It amounts to saying that a person who is empowered to appoint a government servant (as the Director, DERL, for example, undoubtedly is) and who has also appointed him will not be the appointing authority, because, theoretically, even a more superior authority could have appointed him despite having delegated his authority in this regard to a subordinate. On the contrary, the interpretation urged by the Union will not adversely affect the few employees, if any, who may be appointed by a superior scheduled authority despite delegation of such power to a subordinate authority. For, in such a case, the superior authority would be the person who has factually appointed such an employee and he will clearly be the ‘Appointing Authority’ by virtue of Rule-2(a). Lastly, the interpretation sought for by the Union is consistent with practical consideration. The appointing authority under the Schedule is a high-ranking authority and, in an organization like the Railways for instance, it will be virtually impossible for him to consider each and every case of appointment of, or disciplinary action against all the Class-III or Class-IV employees in the organization. It is indeed this realization that has rendered necessary delegation of the power of appointment and cannot be ignored, in the absence of compelling reasons, in the matter of disciplinary powers.
On behalf of the respondents, it is contended that the intention of the rules is to restrict powers of discipline from being exercised by all appointing authorities. Centralization, it is urged, is the object. This contention is not borne out by the table of innumerable disciplinary authorities set out in the schedule, not to speak of those on whom factual or special powers have been conferred by the President (as was indeed done in many of these very cases later). As against this, Sri Pai, for the appellants pointed out that if one has regard to the strength of the railway staff or the other class-III or IV staff employed in various civil services, the interpretation urged on behalf of the respondents would cast an impossible burden of work on the authorities specified in the schedule to whom alone the respondents seek to confine the power to take disciplinary proceedings. There is force in this contention.
It has been brought to our notice that notifications have since been issued (for example on 29th August 1979 in the case of the DERL and 2.1.87 in the case of Ordnance factories) by the President under Rule-12 empowering certain authorities to exercise disciplinary powers. We need hardly say that any disciplinary proceedings initiated by such authorities from the date when such notifications came into effect will be perfectly valid. It has also been brought to our notice that, in some cases, (for example, C.A. Nos. 1443, 1444 and 4340/88), the CAT has also gone into the merits of the cases and set aside the penalties or punishments imposed on the concerned respondent. We do not propose to review the finding on this aspect of the matter under Article-136. C.A. No. 1444/88, .we are told, has also abated as the appellant has taken no steps to bring on record the legal representatives of the respondent but, in view of the Tribunal’s findings on merits, it is unnecessary to go into this question now. The order of the CAT, in such cases, will therefore, stand notwithstanding our conclusion being different from that of the CAT on the main issue discussed above. On the other hand, in most cases, the CAT, because of the view taken by it on the main question, has not dealt with the merits of the proceedings. For example, it was mentioned that in C.A. 316/81, the respondent has been removed from service by the Deputy Director, an authority subordinate to the Director who had appointed him. This aspect has not been considered and will have to be considered now. Similarly, in C.A. 3044/89 filed by the employee, it is pointed out that the appellant had been appointed by the Director of Ordnance Services in 1964. The power of appointment was delegated to Commandants in 1971 and the respondent was penalized by the Commandant, a subordinate authority, to whom disciplinary powers were delegate by the President only in 1979. Though this point does not appear to have been raised before the Tribunal, it goes to the root of the matter and we, therefore, think that it should be left open to be considered by the Tribunal now. As the cases before us are many and were decided principally on the point of law discussed earlier, we have not touched upon the facts or merits of individual cases. We set aside the orders of the CAT in all cases – except C.A. Nos. 1443 and 4340/88 which stand dismissed as mentioned above – and direct the Tribunal/High Court to pass fresh orders disposing of the applications filed before them in the light of our judgment. Where disciplinary proceedings have been stayed at the stage of initiation or later because of the view taken by the Tribunal, they should now be continued and finished without delay in accordance with law. The appeals are disposed of accordingly’.

(e) Railway Board vide letter No. E(D&A)88RG6-12, dated 07.05.1990 have further clarified principle for Determination of Appointing Authority as under;

Sub: Determination of Appointing Authority under Rule 2(1)(a) of the RS(D&A)Rules, 1968 for the purpose of ascertaining authority competent to impose the penalties of dismissal, removal or compulsory retirement.

A full bench of the Central Administrative Tribunal / Hyderabad in their judgment dated 04.12.1987 in the case of Sheikh Khadar Mastan and Nookaraju Vs South Central Railway Administration etc [1988 (2) SLJ 277 (CAT)] had given certain interpretation about determination of the ‘Appointing Authority’ on the Railway in terms of Rule 2(1)(a) and 7 of the RS(D&A) Rules, 1968 and Para 215 of the Indian Railway Establishment Code, Vol-II (1985 Edition) as well as the relevant entries in Schedule-II to the RS(D&A)Rules, 1968. The full bench had come to the conclusion that the Divisional Mechanical Engineer and the Divisional Railway manager, although they had actually appointed S/Shri Khadar Mastan and Nookaraju, were not competent to impose the punishment of dismissal, removal or compulsory retirement on them. The full bench were of the view that the DME and DRM were only the delegates of the General Manager in the matter of making appointments and gave the following main grounds in support of the aforesaid conclusion:-

(a) It is by virtue of delegation that appointments to Group-C and Group-D may be made by an officer subordinate to the General Manager. But the General Manager also continues to be competent to appoint, General Manager happens to be the highest authority. Hence, so far as Group-C and Group-D Railway Staff are concerned, only the General manager shall be the appointing authority within the definition of ‘Appointing Authority’ contained in Rule 2(1)(a).
(b) Delegate of an appointing authority by virtue of mere delegation of power to appoint is not competent to impose the punishment of dismissal, removal or compulsory retirement.
(c) The rule making authority intended that while the power to appoint Group-C and Group-D staff may be delegated, a person once inducted into service ought not to be removed, dismissed or compulsory retired except by the highest of the authorities competent to appoint, which in the case of Group-C and Group-D staff is the General Manager.

(2) An appeal against the above judgment was filed in the Supreme Court. The Supreme Court have given their decision on the same issue vide their judgment dated 10.04.1990, a copy of which is enclosed. They have come to the following conclusion:-

(i) In the first place, it is clear, on the plain language of the Rule-2(1)(a) that it directs the ascertainment of the authorities specified in each of Clause (i) to (iv) of the rule as may be applicable to a particular case and designates the highest of them as the ‘Appointing Authority’.
(ii) Secondly, Rule-2(1)(a) does not contemplate any authority other than the one empowered to appoint a person belonging to the post or grade which the concerned employee holds. In that sense, the two parts of Clauses (i) and (ii) are not to be read distributively to ascertain the authority empowered to make appointments (a) to service, (b) to the grade and (c) to the post and consider the highest of them. One has to restrict oneself to the post or grade of the government servant concerned and invoke Clause (i) or (ii) as the case may be.
(iii) Thirdly, the whole purpose and intent of the Rule-2(1)(a) is to provide that appointing authority means either the de facto or the de jure appointing authority. It will be appreciated that, generally speaking, only the de jure authority can make the appointment but, occasionally, a superior authority or even a subordinate authority (with his consent) could have made the appointment. Again it is possible that the authority empowered to make the appointment at the time when relevant proceedings in contemplation may be higher or lower in rank to the authority which was empowered to make the appointment or which made the appointment at a different point of time. The whole intent or purpose of the definition is to safeguard against an infringement of Article 311(1) of the Constitution Of India and ensure that a person can be dealt with only by either a person competent to appoint person of his class or the person who appointed him, whoever happens to be higher in rank. That rule is not infringed by the interpretation placed by the appellants. The provisions of the Schedule-II in the case of Railways which specify the Appointing Authority or an authority of equivalent rank or any higher authority as the disciplinary authority are also consistent with this interpretation.
(iv) Fourthly, if any person is appointed by a superior schedule authority despite delegation of such power to a subordinate authority, such superior authority would be the person who has factually appointed the employee and he will clearly be the ‘Appointing Authority’.
(v) The appointing authority under the Schedule is a high ranking authority and, in an organization like the Railways for instance, it will be virtually impossible for him to consider each and every case of appointment of, or disciplinary action against all the Class-III or Class-IV employees in the organization. It is indeed this realization that has rendered necessary delegation of the power of appointment and cannot be ignored, in the absence of compelling reasons, in the matter of disciplinary powers.

(3) The aforesaid points made in the Supreme Court judgment will indicate that they have vindicated Ministry Of Railway’s stand that it is not necessary for the General manager to dismiss or remove even Group-C and Group-D staff like S/Shri Khadar Mastan and Nookaraju, who were appointed by lower authorities.
(4) The Supreme Court have decided the principle on the point of law regarding determination of ‘Appointing Authority’, as mentioned above. The Supreme Court have not touched upon the facts or merits of individual cases (except for 3 or 4 of individual cases of S.C.Railway. They have directed the Tribunal / High Courts to pass fresh orders disposing of the applications in other individual cases filed before the Tribunal / Courts in the light of their judgment about the principle involved. In view of this, necessary action may please be taken to have all the cases involving the above point which are pending as well as those already settled in the different Courts / CATs decided as quickly as possible by filing special applications in the Courts or Tribunal concerned.

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